the rwandan genocide: a legal analysis

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The Rwandan genocide: a legal analysisMpfariseni Budeli a & Beauty Vambe aa Department of Mercantile Law , University of South Africa ,Pretoria, South AfricaPublished online: 20 Nov 2010.

To cite this article: Mpfariseni Budeli & Beauty Vambe (2010) The Rwandan genocide: a legalanalysis, African Identities, 8:4, 409-424, DOI: 10.1080/14725843.2010.513255

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RESEARCH ARTICLE

The Rwandan genocide: a legal analysis

Mpfariseni Budeli* and Beauty Vambe

Department of Mercantile Law, University of South Africa, Pretoria, South Africa

(Received 7 July 2010; final version received 20 July 2010)

The customary international law on genocide established at the 1948 GenocideConvention suggests that neighbouring countries that watch genocide take place inanother state and fail to take steps to stop it can also be prosecuted for allowing themassacre of people. Although this provision was not accorded a binding force, itreveals that genocide occurs within a wider political context in which states can takeaction to stop it or not. When the Rwandan genocide took place in 1994 theOrganisation of African Unity (OAU) was the supreme African body made up of morethan 50 states. However, the OAU did not mobilise its members to send troops to stopthe Rwandan genocide. This raises questions about the legality of the OAU then, andthe inefficacy of its legal mechanism or instrument with which the Organisation couldhave used to enforce its decisions. The aim of this article is to critically investigatewhether or not the OAU legal mechanism was best suited to help the OAU intervenein the Rwandan genocide. The article poses serious questions about the legalmechanism or instrument that the African Union (AU), which succeeded the OAU,has created to enforce its decisions especially in war-zone contexts. The article thenends by suggesting proposals and recommendations that the AU can adopt tostrengthen its legal mechanism or create a new legal instrument that can be enforcedby the African Court of Justice and the Peace and Security Council of the AU inanticipation of potential genocide occurring in other African states, other than that ofDarfur in Sudan.

Keywords: customary international law; 1948 Genocide Convention; OAU; legalmechanism; legal instrument; AU; African Court of Justice; Rwanda; Sudan

Genocide is regarded as an international crime and has been practised for centuries (Aust

2005, p. 270). Its definition varies among scholars. Accordingly, there is no single

definition that has been accepted as a definitive definition of genocide. In 1944, the Polish

lawyer Raphael Lemkin coined the term ‘genocide’ from the Greek, ‘genos’, which means

‘mass,’ and ‘-cide’ that implies killing (Lemkin quoted in Fournet 2007, p. 5). Lemkin

went on to define genocide as:

the coordinated plan of different actions aiming at the destructions of essential foundations ofthe life of national groups with the aim of annihilating the groups themselves. The objectivesof such a plan would be disintegration of the political and social institutions of culture,language, national feelings, religion, economic existence of the national groups and thedestruction of the personal security, liberty, health, dignity and even the life of the individualsbelonging to such groups. Genocide is directed against the national group as an entity, and the

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DOI: 10.1080/14725843.2010.513255

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*Corresponding author. Email: [email protected]

African Identities

Vol. 8, No. 4, November 2010, 409–424

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actions involved are directed against individuals, not in their individual capacity but asmembers of the national group. (Lemkin 1944, p. 79)

Lemkin’s definition of genocide was criticised for being too broad (Totten and Parsons

1995, p. 3). After lengthy debates on what the term ‘genocide’ means and how it should be

defined by the international community, in 1948, the United Nations adopted a Convention

on the Prevention and Punishment of the Crime of Genocide. This Convention came up

with what is perceived as the legal definition of genocide although there are some criticisms

of it. According to the Genocide Convention, genocide means any of the following

acts committed with the intent to destroy, in a whole or in part, a national, ethnical, racial or

religious group as such:

. Killing of members of the group;

. Causing serious bodily or mental harm to members of the group;

. Deliberately inflicting on the group conditions of life calculated to bring about its

physical destruction in whole or in part;

. Imposing measures intended to prevent births within the group;

. Forcibly transferring children of the group to another group. (Article 2 of the

Genocide Convention).

Genocide is sometimes grouped together with crimes against humanity, and like the latter,

it can be committed in peacetime as well as during an armed conflict (Aust 2005, p. 270).

However, what distinguishes it from the crimes against humanity is that the acts must be

committed ‘with intent to destroy a group of people’. The intention to ‘destroy’ means the

physical and the biological destruction of all or part of the group (Shaw 2008, p. 432). As

far as the material elements of the crime are concerned, killing is clearly the key conduct

involved and it has been held that the act in question must be intentional if not necessarily

premeditated (Shaw 2008, p. 432).

This paper specifically deals with the genocide that occurred in Rwanda in 1994. It

questions the effectiveness of the African Union (AU) peacekeeping instruments. It further

provides some recommendations for the prevention of genocide and other crimes against

humanity in Africa.

The Rwandan genocide: a brief background

Rwanda is one of the smallest countries in Central Africa. It was administered by Belgium

from 1919 under the League of Nations mandate until 1962 when it gained its

independence. It is about a third the size of Belgium. Most of the Rwandan population

belong to the Hutu ethnic group who are traditionally crop farmers. For many centuries,

Rwanda attracted Tutsis who are traditionally herdsmen from Northern Africa. For more

than 600 years, the Hutus and the Tutsis shared the business of farming, their language,

their culture and their nationality.

Due to the nature of their historical pastoral or agricultural roles, the Tutsis tended to

be landowners and Hutus the people who worked the land. When the European colonists

moved into Rwanda, a wedge was driven between the Hutus and the Tutsis. As it was the

practice of the colonial administrators to select a group to be privileged and educated

intermediaries between the governor and the governed, the Belgians chose the Tutsis.

The Belgians issued each Rwandan with an identity card. The Belgian considered the

Tutsis to be the superior race and systematically imposed their authority over the Hutus.

This introduction of class consciousness unsettled the stability of Rwandan society.

Some Tutsis began to behave like aristocrats and the Hutus felt treated like peasants.

M. Budeli and B. Vambe410

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As a result, the Hutus felt oppressed and, in 1956, their rebellion began. By 1959, they

had seized power and were stripping the Tutsi communities of their lands. Many Tutsis

retreated to exile in neighbouring countries where they formed the Rwandan Patriotic

Front (RPF).

In 1961, elections were held in Rwanda and the first Rwandan Republic was declared.

Dominique Mbonyumutwa was named the president for the transitional government. After

gaining independence in 1962, a politically inexperienced Hutu government began to face

internal conflicts. The government of this time also furthered the Belgian colonial

government’s policy of labelling people with ethnic identify cards and used this practice to

attack mixed marriages between the Hutu and the Tutsis. In 1973, Juvenal Habyarimana, a

Hutu, overthrew the government claiming that the government was ineffective and riddled

with favouritism.

In 1978, Rwanda, under the leadership of Juvenal Habyarimana, went to polls.

The overwhelming majority endorsed the constitution and confirmed Habyarimana as the

president. Habyarimana was re-elected in 1983 and again in 1988 when he was the sole

candidate.

In 1990, President Habyarimana in responding to public pressure for political reform,

announced his intention to transform Rwanda’s one-party state into a multiparty

democracy.

Again in 1990, the Rwanda Patriotic Front (RPF) attacked the Hutus and that was

the beginning of a civil war in Rwanda. A ceasefire was achieved in 1993, followed

by the United Nations (UN)-backed efforts to negotiate a new multiparty constitution,

but Hutu leaders opposed any Tutsi involvement in government. On 6 April 1994, a

plane carrying Rwanda’s president was shot down when he was returning from signing

the Arusha agreement with the RPF. The Tutsis were accused of killing the president

Juvenal Habyarimana who was a Hutu. As a result, the Hutu civilians were told by radio

that it was their duty to wipe the Tutsis out. That was the beginning of genocide in

Rwanda. The aim was to kill every Tutsi around the country and all Hutus that were not

supporting them. The 7th of April was identified as the day on which the genocide

officially began. This genocide was carried out entirely by hands, often using machetes

and clubs. Soldiers and police officers encouraged ordinary citizens to take part in the

murder. In some cases, Hutu civilians were forced by military personnel to murder their

Tutsi neighbours. Participants were often given incentives, such as money or food, and

some were even told that they could appropriate the land of the Tutsis they killed.

Accordingly, in 100 days, an estimated 800,000 Tutsi men, women and children, and

moderate Hutus were murdered.

The Rwandan genocide ended on 4 July when the RPF rebels led by General Paul

Kagame captured the capital city Kigali and ousted the extremist government. After the

genocide, President Bizimungi took over.

The international legal context of the Rwandan genocide: the 1948 United Nations

Convention, 1998 Roman Statute and International Criminal Court (ICC)

In 1948, the international community adopted a Convention on Genocide. According to

the preamble to the Convention, genocide is a crime in international law and is contrary to

the spirit and aims of the United Nations and is condemned by the civilised world. The

member states confirmed that genocide, whether committed in time of peace or in time of

war, was a crime under international law which they undertook to prevent and to punish

(Article 1).

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The Convention places criminal responsibility on all individuals with no exception for

heads of states and public officials (Article 4). However, Article 5 left the enforcement of

the Convention to the courts of the party in whose territory the crime was committed.

According to Article 6, genocide shall not be considered a political crime for extradition.

Rwanda became a member of the United Nations on 18 September 1962. It acceded to the

Convention on Genocide on 16 April 1975.

The prevention and the prosecution of genocide as an international crime were

reinforced by the establishment of the International Criminal Court (ICC) whose Statute

was signed in Rome, Italy, in 2008. The ICC is inter alia mandated to ‘try an individual for

the crime of aiding, perpetrating or inciting genocide’. Accordingly, individuals can now

be tried ‘by a competent tribunal of the State in the territory of which the act was

committed, or by such international penal tribunal as may have jurisdiction’ (Slade 2007,

p. 155).

Apart from individuals, national governments that are found to be aiding and abetting a

special genocidal act may also be indicted for inciting or participating in genocidal acts

(Karnavas 2007, p. 101). Foreign governments that aid genocidal acts can also be indicted,

although in the case of the Rwandan genocide, the well-documented complicit roles of the

USA, Britain and France has not attracted punishment of their governments (Dallaire and

Manocha 2007, pp. 61–71). This lack of bringing the USA, France and Britain to account

legally for their roles in the Rwandan genocide suggests the limitations and some

reservations inherent in the enforcement of the Genocide Convention. It is also possible

for a national State to exercise ‘its own criminal jurisdiction over those responsible for

internal crimes (Slade 2007, p. 163). From a legal point of view, the international

community should have the will-power or resolve to stop genocide soon before or

immediately after it begins. Further, ‘whatever else international law does, it should have

the wherewithal to bring legal proceedings against the perpetrators’ (Slade 2007, p. 149).

But Max du Plessis reveals that there is a contradiction at the heart of implementing the

international genocide law since by definition, and in terms of the admissibility of the

crime, in many cases:

The international Criminal Court is not expected to supersede national prosecutions ofpersons guilty of international crimes [because] investigations and prosecutions underthe Rome Statute are premised on the principle of ‘complementarity’ whereby the Courtis required to rule a case inadmissible when it is being appropriately dealt with by anational justice system. States Parties to the Court therefore retain their right andresponsibility to investigate offences committed on their territory, or where their nationalsstand accused of committing ICC crimes anywhere else in the world. (du Plessis 1994a,pp. 545–568)

Although at the time of the genocide Rwanda was already a member of the UN, it is

unfortunate that during the genocide, the international community did not intervene.

Initially, the international community categorised the killing as a breakdown in the

ceasefire between the Tutsis and the Hutus. Throughout the massacre, both the UN and the

USA carefully refrained from labelling the killing as genocide, which would have

necessitated some kind of emergency intervention. The UN Security Council responded to

the worsening crisis by voting unanimously to abandon Rwanda. Accordingly, the

Rwandans were left alone by the international community. UN troops withdrew from

Rwanda immediately.

These legal strictures are important to highlight because they seem to have been a

challenge to the working of the Organisation of African Unity (OAU) and continue to

undermine what the AU can achieve in the fight against genocide in Africa.


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The OAU, decolonisation of Africa and the Rwandan genocide

The OAU was established on 25 May 1963 at Addis Ababa, Ethiopia with the purposes of

promoting the unity and solidarity of the African States, defending the sovereignty of

members, eradicating all forms of colonialism, and promoting international support for the

Charter of the United Nations and the Universal Declaration of Human Rights (Article

2(1) OAU Charter of 1963). The OAU was based on a number of principles, including the

following:

. Non-interference in the internal affairs of States. (Article 3(2) of the OAU Charter)

. Respect for the sovereignty and territorial integrity of each State and for its

inalienable right to independent existence. (Article 3(3) of the OAU Charter)

. Peaceful settlement of disputes by negotiation, mediation, conciliation and

arbitration. (Article 3(4) of the OAU Charter)

. Unreserved condemnation in all its forms, of political assassination as well as of

subversive activities on the part of neighbouring States or any other State. (Article

3(5) of the OAU Charter)

The OAU principles were primarily based on liberating African countries from colonial

oppression and fostering their social and economic self determination. Thus the OAU was

the institutionalisation of pan-African principles and it sought to encourage the tradition

of solidarity and cooperation among Africans. These principles were incorporated into

the OAU’s permanent mechanism or instrument for peaceful resolution of conflicts in

Africa. Hence, from 1990 until 1993, the OAU member states also worked to provide a

mechanism on conflict prevention, management and resolution.

The declaration of the Assembly of Heads of State and Government on the

establishment within the OAU of a mechanisim for conflict prevention, management, and

resolution (OAU MCPMR), was adopted in Cairo, Egypt on 30 June 1993. The OAU

MCPMR states that the mechanism will be guided by the objectives and principles of the

OAU Charter, in particular the sovereign equality of member states, non-interference in

the internal affairs of the states, the respect of the sovereignty and territorial integrity of

member states, their inalienable right to independence existence, the peaceful settlement

of disputes as well as the inviolability of borders inherited from colonialism (Article 14 of

the MCPMR).

Of far-reaching consequences were the provisions in the permanent mechanism for

peaceful resolution of conflicts which stated that:

. It [the mechanism] will also function on the basis of the consent and the cooperation

of the parties to a conflict.

. In the event that conflicts degenerate to the extent of requiring collective

international intervention and policing, assistance or where appropriate the services

of the United Nations will be sought under the general terms of the Charter. (Article

16 of the MCPMR).

Rwanda became a member of the OAU at its inception in 1963. Arguably, the Rwanda

occurrences of genocide pre-exist (Prunier 1995, Pottier 2002, Mamdani 2001, Newbury

2001, Nkunzimana 2009) the formation of the OAU in 1963. However, it was the

Rwandan genocide that took place in a space of one hundred days between April 1994

until July 1994 that exposed the fundamental limitations of the OAU’s instrument or

permanent mechanism for peaceful resolution in Africa. Having pronounced the

principle of ‘non-interference’ in member states, the OAU found itself unable to


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intervene in the Rwandan genocide that was projected as a domestic conflict by the

Habyarimana government, and therefore was depicted as a conflict that could be solved

using Rwanda’s municipal laws. The failure of the OAU’s permanent mechanism for

resolving conflicts to clarify under what conditions respecting the sovereignty of a

member state should be upheld was brought home to the OAU when the Hutu extremist

government started killing its own people. The OAU failed to censure its member state

that was violating Tutsis and moderate Hutus, let alone intervene militarily to stop

the genocide. The OAU’s overriding concern in wanting to see the decolonisation of

South Africa prevented the organisation from taking seriously the mass killings of Tutsis

and moderate Hutus in Rwanda. When democratic South Africa was born in 1994,

independent Rwanda was engulfed in a fratricidal genocide that killed nearly one

million people.

Squeezed between the need to uphold the territorial integrity of Rwanda with a sitting

government that was a member of the OAU on the one hand, and the demands to recognise

the RPF as a liberation movement on the other, the OAU was immobilised and could not

act effectively during the 1994 Rwandan genocide (Pottier 2002). Or rather, at law, the

OAU acted by supporting the Hutu extremists through not interfering militarily or publicly

denouncing the violations of individual rights by the state (Zegeye and Vambe 2009). The

OAU had no funds to operationalise the instrument of the ‘permanent mechanism’ for

peaceful resolution of African conflicts in Rwanda. With no money, the OAU could not

create a standing army from its member states; and if they were seen intervening in the

Rwandan genocide, this could have been interpreted as not only undermining the

municipal laws of a member state but setting African governments against one of their

own, even when that one was under an authoritarian and genocidal leadership. The belief

in the corridors of the OAU that internal conflict in Rwanda could be solved on the basis of

‘consent and cooperation of the parties to [the] conflict’ (OAU 1996, p. 13) reveals that the

organisation did not understand the new power dynamics in Africa that independence had

promoted. Since membership of the OAU was voluntary, it was not binding and leaders in

Rwanda could easily flout the founding principles with impunity.

In the absence of a legal instrument or permanent mechanism binding all to a set of

rules – the breaching of which would attract enforceable trade sanctions or military

interventions – Habyarimana’s government did not see the OAU principles as a deterrent

to its genocidal impulse. The idealistic belief of the OAU that ‘international intervention

and policing’ would be mobilised under the United Nations flew in the face of reality since

the United States of America, Britain, France, China and Belgium were deeply involved in

the Rwandan genocide through withholding vital information, and supplying arms sales to

the genocidal government in Rwanda..

The OAU was criticised as having been a toothless talking-shop, a club of presidents

and prime ministers who informally embraced a policy of non-intervention in the internal

affairs of their member states. It lacked the political will or means to foresee or intervene

in the Rwandan crisis. Thus, the failures of the OAU in the Rwandan genocide are in fact

the weaknesses inherent in an unreformed and narrow policing instrument, previously

geared to promoting pan-African nationalist identities, but now being applied in a

post-independence African political context. This context required a totally new set of

legal mechanisms or instruments to rein in errant leaders and governments bent on

undermining the constitutional rights, freedom of expression and right to life of the people

who are citizens of the OAU member states. As du Plessis argues, not only were the goals

of pan-African ideals of securing independence for African peoples and uniting against

colonial subjugation, no longer sustainable but:


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Increasingly the OAU came to be criticized for its failure to respond to serious conflictsbetween member states [and within member states]. In addition, several of Africa’s leaders inthe fight for independence led their newly liberated nations into totalitarianism, with anineffectual OAU doing little to put a stop to this African malaise . . . the OAU found itselfcaught between superpower rivalries during the Cold War, that ideological clashes led todebilitation of the OAU as it failed adequately to respond to civil wars that were fueled byEast/West interests (such as in Angola and Mozambique) and [Rwanda) . . . the OAU sufferedfrom under-funding by member states, and an unwieldy Assembly structure, in which the 53members inclined towards preserving national interests and sovereignty at the expense of atrue commitment to regional cooperation and finding African solutions for African problems.(Du Plessis 1994a, pp. 549–550)

In other words, despite having succeeded in promoting political decolonisation in Africa,

the OAU did not possess a robust legal instrument or permanent mechanism with legally

binding power among its members to enforce the rule of law, recognition of individual

rights and protection of citizens from the cruel municipal laws created by their leaders.

According to Kupe, clear ‘regulatory frameworks’ (2005, p. 193) backed by detailed

provisions of legal instruments or permanent mechanisms to guarantee peace in Africa is

what the AU – which succeeded the OAU in 2002 – needs in order to anticipate and

prevent genocidal conflicts in some parts of Africa or a repeat of the Rwandan genocide.

An exploration of the AU legal instruments for conflict resolution between African states

and within African states can shed light on the immense task that the AU faces in enforcing

rules that prevent genocide in Africa.

AU structures and the promotion of human rights, peace, and security in Africa

As already pointed, the AU replaced the OAU and in effect took on all its assets and

liabilities. The AU was officially inaugurated on 11 July 2002 in Durban, South Africa.

It was brought into being through the Constitutive Act which was signed in Lome, Togo

in 2000. The AU Constitutive Act replaced the Charter of the OAU.

Article 3 of the Constitutive Act of the AU also highlights the significance of

promoting ‘peace, security, and stability on the continent’. The AU also aims to:

. Promote democratic principles and institutions, popular participation and good

governance (Article 3(g) of the Constitutive Act); and

. Promote and protect human and people’s rights in accordance with the African

Charter on Human and People’s Rights and other relevant human rights instruments

(Article 3(h) of the Constitutive Act). (AU 2000a, p. 5).

Despite the fact that the principle of ‘non-interference by any Member State in the internal

Affairs of another’ is entrenched in Article 4 of the Constitutive Act of the AU, the

Assembly of the AU, which is the AU supreme decision-making body, can ‘at the request

of any Member State and on approval by a two-third majority of the Member States . . .

meet in an extraordinary session’ and approve of minimal interference in the affairs of

another country. This provision does not cover a situation where a leader of a member state

persecutes his people, and the people, in turn, violently removes him/her, since Article 4 of

the AU Constitutive Act can condemn and reject any unconstitutional change of

government even though it may be in the interests of the people. These are some of

the contradictions in the responsibilities of some AU organs. Two of these AU organs are

particularly mandated to deal with genocide, peace and security in Africa. These are the

Court of Justice and Human Rights and the Peace and Security Council. The functions of

the African Court of Justice are, among others, to:


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. Collect documents and undertake studies and researches on human and people’s

rights in matters in Africa;

. Lay down rules aimed at solving the legal problems relating to human and people’s

rights;

. Ensure protection of human and people’s rights; and

. Interpret all the provisions of the Charter.

The establishment of the Court of Justice of the AU has received mixed reactions.

According to Dugard, the establishment of the Court in 2004 ‘shows the willingness of the

States to adopt a more judicial and less political way of settling inter-African disputes’

(Dugard et al. 2006, p. 1). However, Dugard was cautious when noting that ‘the efficacy of

the Court depended on its ability to receive demands from individuals on human rights

issues’ (Dugard et al. 2006, p. 3).

A position paper created by the German Federal Ministry for Economic Cooperation

and Development (BMZ) in close cooperation with the African Court on Human and

People’s Rights suggests that enhancing the capacity of the African Court of Justice can

enable it to develop human rights standards in Africa (http://www.gtz.de/en/weltweit/

afrika/25984.htm, accessed on 10 July 2010).

Despite these positive appraisals of the Court of Justice of the AU, the Court does not

have a solid or sufficiently detailed legal instrument or mechanism to compel member

states always to abide by the Court’s decisions. The Court also lacks a robust legal

mechanism to protect from its member states the human rights of the citizens who perceive

that their rights have been violated by their states.

For example, Pityana takes issue with the Court and suggests that ‘extraterritorial

jurisdiction is a concept that has not yet received wide acceptance in Africa’ (Pityana

2003, p. 4) and this is confirmed in Article 4(g) dealing with the AU principle of ‘non-

interference’ in the internal affairs of a member state. Although Article 4(h) of the AU

provides for AU interference in ‘respect of grave circumstances, namely: war crimes,

genocide and crimes against humanity’, this is only possible when the state party declares

that the AU has jurisdiction over municipal laws. It would not be ‘within the competence

of the court to impose a treaty obligation on states that have not assumed the duty by

themselves’ (Pityana 2003, p. 6). In the event that there is a dispute between a state party

and its citizen, in which the state is the aggressor, the latter can choose to exhaust domestic

remedies in the ‘full’ knowledge that these will not implicate it. The provision of Article

34(3) of the AU Protocol also suggests that it is the state party that has the power to make a

declaration accepting the competence of the Court to receive cases under Article 5(3) of

this Protocol. This tends to limit access to and power of the court especially when the state

party or member state municipal laws are not in ‘conformity with its international treaty

obligations’ (Pityana 2003, p. 7).

In other words, the fact that ‘individuals and NGOs can only submit cases against

states if the state concerned has made a declaration accepting the competence of the Court

to do so under Article (30) (f) of the single Protocol . . . renders access to justice

illusory for human rights victims’ (http://www.interights.org/AfricanSingle

ProtocolAdopted/index.htm, accessed on 17 May 2010).

The African Union Court of Justice

Article 4 of the AU Constitutive Act provides for ‘the right of the Union to intervene in a

Member State pursuant to a decision of the Assembly in respect of grave circumstances,

namely: war crimes, genocide and crimes against humanity’(Article 4(h) of the


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Constitutive Act). Article 4 also promotes ‘respect for the sanctity of human life,

condemnation and rejection of impunity and political assassination, acts of terrorism and

subversive acts’.

The African Union’s insistence on ‘peaceful co-existence of Member States and their

right to live in peace and security’ (Article 4) suggests that African states can be at each

others’ throats. This again justifies the creation of the Court of Justice of the Union to

interpret conflicts which is aided by the Peace and Security Council of the AU to clearly

define ‘a mechanism for determining situations representing a serious threat to legitimate

order and the steps necessary to restore peace and stability to the member states, in close

cooperation with the UN Security Council’ (Du Plessis 1994a, p. 553).

Muwanga (2006, p. 3) suggests operationalising the juridical power of the African

Court on Human and People’s Rights resides in the willingness of state parties to submit

themselves to the universal jurisdiction of the Court which many African states are too

often reluctant to do. More sustained criticism of the African Court of Justice has focused

on the failure of the AU organ to deliver legally authoritative and conclusive decisions that

are binding on the member states. For example, Juma suggests that the restrictive access of

individuals and affiliated NGOs to ‘the Court may undermine the utility of the Court’

(Juma 2000, p. 1), because the Court’s ‘scheme of access to human rights court in which

primacy is given to the state defies the conventional understanding of international human

rights law’ (p. 3).

Apart from the lack of clarity suggested in the terms ‘human’ and ‘people’s rights’

preferred by the Court but which suggest mutual exclusivity, in Africa ‘NGOs have played

a phenomenal role in the African human rights system, as evidenced by the fact that most of

the individual communications before the African Commission have been lodged by or

at the initiative of these organizations’ (Juma 2000, p. 3). In other words, against the

logic of the Protocol of the Court, state parties may decide to ‘investigate domestically,

than initiate a case against itself at an international court as contemplated by article (5) (1)

(c–d) of the Protocol’ (Juma 2000, p. 4). This is so because in many cases violations of

citizens’ rights are instigated by the state party or ‘in some cases, states may have no interest

if such violations do not take place in their territories’ (Juma 2000, p. 16). Therefore,

the Court of Justice should work and ‘exercise authority broader than the sovereign state’

(Juma 2000, p. 4).

These observations on the limitations of the legal instrument or mechanism of the

African Court which it could use to contain threats from external and internal forces within

its member states are valid; they beg for a more robust instrument to be put in place even

when one recognises the caveat entered by Juma which is that: ‘The African Court is in its

infancy stage’ (Juma 2000, p. 5).

The AU Peace and Security Council

The Peace and Security Council is one of the institutions created by the AU to respond to

peace and security challenges on the continent. The AU intends that the Peace and

Security Council will be able to intervene to prevent crimes against humanity in Africa.

Accordingly, a Protocol Relating to the Establishment of the Peace and Security Council

(hereinafter referred to as the Protocol on Peace and Security) was adopted and, as a result,

the Peace and Security Council was launched in May 2004. As already pointed out, the

mandate of the Peace and Security Council is to promote collective security and enhance

an early-warning framework to facilitate the timely and efficient response to conflicts and

crisis situations in Africa.


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At their first Ordinary Session of the Assembly of the African Union held on the 9 July

2002 in Durban, South Africa, AU member states agreed that the organ on Peace and

Security Council of the AU would:

. Contribute to conflict prevention, management and resolution in the maintenance

and promotion of peace, security and stability on the continent and the need to

develop formal coordination and cooperation arrangements between Regional

Mechanism and the Union.

. Make up a collective security and early-warning arrangements to facilitate timely

and efficient response to conflict and crisis situations in Africa (the Protocol on

Peace and Security).

. Anticipate and prevent conflicts. In circumstances where conflicts have occurred,

the Peace and Security Council shall have the responsibility to undertake peace-

making and peace-building functions for the resolution (Article 3(b) of the Protocol

on Peace and Security).

. Establish a Panel of the Wise that shall advise the Peace and Security Council and

the Chairperson of the Commission on all issues pertaining to the promotion, and

maintenance of peace, security and stability (Article 11(3) of the Protocol on Peace

and Security).

. Create a Continental Early Warning system (Article 12 of the Protocol on Peace and

Security) responsible for analysing developments within the continent and to

recommend the best course of action.

. Establish an African Standby Force (Article 13) for ‘preventive deployment in order

to prevent (1) a dispute or a conflict from escalating, (2) an ongoing violent conflict

from spreading to neighbouring areas or States, and (3) the resurgence of violence

after parties to a conflict have reached an agreement.

Article 7(e) of the Protocol on Peace and Security gives the Peace and Security Council,

the power to recommend to the AU Assembly pursuant to Article 4(h) of the Constitutive

intervention, on behalf of the Union, in a Member State in respect of grave circumstances,

namely, war crimes, genocide and crimes against humanity. Article 7(g) of the Protocol on

Peace and Security provides that the Peace and Security Council can ‘institute sanctions

whenever an unconstitutional change of takes place in a member state’.

The AU member states committed themselves to providing the necessary funding of the

organ of the Peace and Security Council. Article 21(2) and Article 17(2) of the Protocol on

Peace and Security suggest that, where necessary, recourse will be made to the United

Nations to provide the necessary financial, logistical and military support for the AU’s

activities . . . in keeping with the provisions of Chapter VIII of the UN Charter on the role

of regional organisations in the maintenance of international peace and security.

Despite these lofty ideals, the AU’s Peace and Security Council has faced some

numerous challenges, the most important of which relate to:

. Absence of political will to intervene in certain conflict areas such as the 2008

Zimbabwe presidential elections.

. Lack of funding because most of the AU state parties are not paid-up members.

. The reluctance of the AU’s regional organs of the Peace and Security Council to

actively and collectively participate in solving the conflicts occurring in any one region.

Instead of strengthening the Peace and Security Council of the AU, regionalisation of

the structure of this organ actually foments division so that it is rare that North Africa,

for example, will participate in solving problems in Southern Africa and vice versa.


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Also, the main obstacle to the realisation of an effective early-warning system in Africa is

political rather than simply technical, sociological or financial. An obvious example is the

way in which the AU Commission and its member states have blocked an inquiry and

possible trial, even in the African court, of the Sudanese president for genocide and crimes

against humanity committed in Darfur and southern Sudan. In fact, the AU’s Peace and

Security Council resolution on the Sudan indictment falls short of openly declaring its

protection of President Al Bashir (Zegeye and Vambe 2009). Some of the resolutions of

the AU’s Peace and Security Council that undermine the human rights of the Darfurians

and the Christian Africans in Southern Sudan are couched in legal language designed to

prevent prosecution. For example, the 21 July 2008 meeting of the organ held in Addis

Ababa, Ethiopia reiterates the need to ‘combat impunity and promoting democracy’ in

Sudan (Article 2) and yet the same AU, in Article 10(1), requests the UN Security Council

‘to defer the process initiated by the ICC, taking into account the need to ensure that the

ongoing peace efforts are not jeopardised, as well as the fact that, in the current circum-

stances, a prosecution may not be in the interest of the victims and justice’.

In reality, President Al Bashir went on to ‘win’ an election in 2010 which some of his

previous historical victims have described as rigged. The double standards of the AU and its

manipulation of the organ of the Peace and Security Council in dealing with tyrannical

leaders backed by powerful resources such as oil compromises the aims of the AU to

strengthen its legal instrument or mechanism (Zegeye and Vambe 2009). This raises the

question as to whether or not the so-called African Peer Review Mechanism (APRM) has

any wide chances of promoting democracy in Africa or of protecting leaders who can violate

their citizens with impunity.

The African Peer ReviewMechanism and the search for a viable legal instrument for

good governance and development in Africa

The story of the African Peer Review Mechanism (APRM) is even sadder because it reveals

the height of hypocrisy of both the member states and the AU that is the ultimate guarantor of

that process (Kupe 2005, Zegeye and Vambe 2009). For example, Ghana, which is most

cited as having gone through a successful peer review process, limited this process to

economic development. Even in this area, Ghana has not, by the admission of its ordinary

citizens, succeeded in transferring economic wealth into the hands of the majority. This is a

crucial test because the declared aim of the establishment of the AU was to further the

economic progress of African countries so that this would benefit the vast majority who do

not have easy access to tertiary education, good health and the enjoyment of unfettered

political choice of being governed by those whom the citizens would wish to be governed by.

The story of Kenya is also illustrative of uncritical approaches to the process of the

APRM. In 2007 it was announced in major African newspapers that Kenya had also

followed in the footsteps of Ghana in carrying out a successful peer review process. But

the violence that characterised the Kenya elections that took place in December 2007 and

left more than 1500 people dead or missing and 350,000 displaced due to inter-ethnic and

politically inspired conflicts poured cold water on what was supposed to be another of the

AU’s success stories with the APRM (Zegeye and Vambe 2009). In Kenya, the sinister

nature of the post-electoral violence was not only that it was organised along ethnic lines;

even the chairperson of the AU who wanted to visit Kenya was told that he was not

welcome and he did not go. These stories of the legal and monumental failures of the

APRM as an instrument of legal accountability for the AU are cited here not to celebrate

the failure of the AU’s efforts at seeking to strengthen its legal instrument so as to bind its


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members to a common code of political behaviour. Rather, these legal fiascos of the

APRM suggest that there are certain key elements of a viable legal instrument or

mechanism which the AU and its member states have not taken into account.

Kajee (2007, p. 6) opines that the ‘responsibility for the political aspects of peer review

have been handed to AU institutions (e.g. PAP) that are relatively new and perceived as being

ineffectual’ (p. 20). In the absence of political will of many African countries to implement

the APRM, there is little probability that the system can improve good governance in African

countries. In the absence of mass education about the importance of the APRM for the

majority of African people who should benefit from it, there is all probability that the elite

leadership will sweep the instrument under their political carpets and pretend that it does not

exist in their countries. In the absence of a harmonised and acceptable political culture of

accountability in Africa, there is the probability that African states can even foment violence

in other member states of the AU. For example, until such time as a country such as the

Democratic Republic of Congo (DRC) can control all its territories so that it is not used as

rear base by Interahamwe elements to destabilise Rwanda, the latter cannot enjoy peace as

guaranteed in Article 4(1) of the Constitutive Act of the AU. Equally, until Rwanda also

ceases to bankroll and also provide political succour to the likes of Laurent Mkunda, who

killed innocent civilians in the DRC, ‘acts of terrorism and subversive activities’ deplored in

Article 4(o) can continue undermining the sovereignty of the DRC.

Until President Gaddafi of Libya stops the sabre-rattling in encouraging the division of

Nigeria into the north and south, Nigeria will not stop having bloodletting blamed on

religious difference. Until Zimbabwe puts in place instruments that encourage the

development of legal infrastructures that respect the rule of law in that country and stops

persecuting oppositional voices, then its citizens will continue not to enjoy ‘democratic

principles, human rights’ that are guaranteed in Article 4(3) of the AU Constitutive Act.

Until South Africa eventually gets to the bottom of the perpetrators of xenophobia

which saw 63 people die in 2008, and thoroughly investigates a resurgence of the same

crime in 2010 after the World Cup, in which black foreigners from other African countries

were intimidated by some local businesspersons, politicians and ordinary citizens who

harbour purist, extremist and fundamentalist ideas of ethnicity, then talk of African

renaissance and the APRM is a dead letter. This impacts on the democratic rights of

refugees of whatever status to enjoy ‘human and people’s rights in accordance with the

African Charter on Human and People’s Rights and other relevant human rights

instruments’ as contained in Article 3(h) of AU and correctly interpreted by the African

Courts. As Juma further argues, the APRM as a fundamental legal instrument for enforcing

the decisions of the Assembly through the Peace and Security Council of the AU can also be

strengthened when it becomes in ‘strictu sensu binding’ (Juma 2007, p. 20) on all members

of the AU.

Recommendations on a strengthened legal instrument of the AU

In the aftermath of the Rwandan genocide, the AU held that the ‘Rwandan genocide could

have been prevented by those in the international community who had the position and the

means to do so’ (AU 2000b, p. v). This statement reveals everything about the AU’s

misconception that the ‘international community’ is some ‘body’ somewhere, there, out of

Africa, in Europe and America. In our recommendations, we argue that the African

countries that watched as the Tutsis and moderate Hutus were being killed in Rwanda in

1994 are a significant part of the international community that did not act to stop, or rather

acted by not stopping the genocide.


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As the AU conceded, genocide in Rwanda was preventable (AU 2000b). However, ‘no

single formula exists that will prevent the recurrence of a comparable disaster anytime in

the future whether in Rwanda or elsewhere’ (AU 2000b, p. 340). The members of the

International Panel of Eminent Personalities (AU 2000b, pp. 288–291), appointed by the

AU to investigate the Rwandan genocide, recommended inter alia that:

. The rule of the political majority [in Rwanda] must be respected while the rights of

minorities must be protected;

. All leaders of the genocide must be brought to trial;

. In the name of both justice and accountability, reparations are owed to Rwanda by

actors in the international community for their roles before, during and since the

genocide;

. A common human rights curriculum with special reference to the genocide and its

lessons should be introduced in all schools in the Great Lakes Region;

. The AU mechanism for the Prevention, Management and Resolution of Conflicts

needs to develop an ‘early warning system for all conflicts based on continuous and

in-depth country political analysis’.

These recommendations from the AU are commendable. However, they tend to focus

mainly on Rwanda. This of course is understandable because the research was conducted

for the Rwanda genocide. However, there is a need to emphasise that the recom-

mendations should also be applied to the rest of Africa’s trouble spots such as Sudan,

Zimbabwe, Kenya, Somalia and Ethiopia and most recently South Africa. Otherwise, as

Juma notes, if the violations of the citizens of Africa perpetrated by their states are not

noted and addressed, ‘then the primacy granted to State Parties to lodge cases before the

African Court, and the discretion to recognise the competence of the Court to handle

individual complaints must be considered a paradox to internal and regional human

rights protection’ (Juma 2000, p. 16). This can lead to legal paralysis of the functions of

the organ of the Peace and Security Council of the AU. To counter this negative

eventuality some more progressive recommendations can be made. For example:

. There is need for Africa’s media to hold periodically massive information

campaigns about how the structures of AU should work. These campaigns should

aim to inform Africa’s citizens about the need to clamour for democratic institutions

in their own countries.

. There is need to harmonise electoral laws in the member states across Africa and

align them to the democratic ideals espoused in the AU Constitutive Act of 2000.

While municipal laws are determined by the member states, the AU Court of Justice

must find a way of becoming a superior authority and the ultimate legal arbiter in

questions relating to the respect of national sovereignties, electoral laws and

educations of its member states.

. Perpetrators of crimes against humanity such as General Al Bashir should be tried in

Africa by African courts so that African people view the process of upholding the

legal instrument or mechanism taking place in Africa, led by independent African

jurists located in Africa.

. European and American jurists experienced in handling cases of holocaust and

genocide can be consulted.

. A minimum stipulated amount of funds for peace-keeping and peace-making

missions within Africa must be paid to the AU Commission by the AU state parties,

and this must be made compulsory.


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. Sanctions must be contemplated as the first deterrent measure if a member state

violates its people or another state without provocation.

. The issue of regional Courts of Justice must be revisited because it is leading to the

balkanisation of African countries instead of fostering close cooperation. We have

seen how North Africa views problems in SADCC as a Southern African affair. This

undermines the spirit of collective ownership of the legal instrument that the AU

Court of Justice would want to use in cases of fractious disputations within a

particular country or region.

. The AU must lead and not be led by the UN in peace missions that concern Africa

because the UN is not and has never been a neutral body on matters concerning

Africa.

. An African standing force modelled along the lines of NATO forces must be

expanded, and well resourced in anticipation of conflicts in parts of Africa.

. Most importantly, it is the citizens of the member states who have the real mandate

to change governments and hold their leaders accountable to issues of democracy

and good governance.

. The AU should work closely with civic organisations to help monitor the

implementation of the AU legal mechanism for peace and security.

. The AU should adopt an expanded understanding of what constitutes genocide; this

means going beyond counting the dead bodies, but actually to understand the

elements of genocide that arise from the epistemic conditions that make a genocide,

whether political, physical or cultural, a possibility.

Conclusion

Judging from the repetition of acts of genocide that are happening in Sudan today, it

appears Africa has not learnt much from the tragic Rwandan genocide of 1994. It appears

that the AU’s legal instrument or mechanism which should be enforced to ensure peace

and security within member states has not sufficiently been provided with the commit-

ment, goodwill, and financial resources to strengthen it.

The aim of this article was to call for further tightening of the screws within the AU

legal, peace and security systems which should be depended upon in times of crises. It was

noted that the AU is held hostage by its very own members who can flagrantly disregard

obeying and conforming with the provisions that they signed up to when the AU

Constitutive Act was put in place in 2000. It was also suggested that the AU should devise

a mechanism to make membership of the AU compulsory. If this fails, at least the African

countries that do sign up to become members of the AU should be forced to abide by its

instruments.

One way of doing this is to disallow any former African leader becoming chairperson

of the AU since there is at the AU presently an ugly culture for covering up for and

protecting African presidents who violate their citizens’ human rights.

The article argued that the AU’s overriding concern with economic progress must

be revised because this cannot happen in a political context of mayhem. Emphasis

must be placed on educating African citizens about human and people’s rights because

up to now most Africans have been cowed into submission by their totalitarian

leadership. The AU Commission must realise that the power to make the legal instrument

that promotes peace and stability in Africa work resides with it as much as it does within

the institutional arrangements and willingness of African leaders to provide good

governance.


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At a very important level, the AU structures can only be judged by how much they protect

individual rights of African citizens and not by insisting on the empty rhetoric of African

unity. Unity and uniformity are two different concepts. The AU must reform and devolve

power to the African citizens so that its leadership role is strengthened and becomes more

democratic. Otherwise, genocide can happen again in Rwanda or anywhere else in Africa.

Notes on contributors

Mpfariseni Budeli is Associate professor at the Department of Mercantile Law, College of Law,University of South Africa, LLB LLM (University of the North), PhD (University of Cape Town),and admitted attorney of the High Court of South Africa.

Beauty Vambe is a qualified teacher in English Language and Literature from the University ofZimbabwe, Belvedere College. She is presently a law student at the University of South Africa. Shehas published on media and copyright law in MUZIKI: journal of music research in Africa (2006)and on indigenous law in the Icfai University journal of Commonwealth literature.

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the rwandan genocide: a legal analysis

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